Opinion
01-20-00663-CV
08-02-2022
CHARLES EDWARD GREEN, Appellant v. MARY ADAMS GREEN, Appellee
On Appeal from the 507th District Court Harris County, Texas Trial Court Case No. 2015-72258
Panel consists of Hightower, Countiss, and Guerra Justices.
MEMORANDUM OPINION
Julie Countiss, Justice.
Appellant, Charles Edward Green ("Charles"), challenges the trial court's post-divorce order granting the motion of appellee, Mary Adams Green ("Mary"), to clarify the parties' agreed final divorce decree. In two issues, Charles contends that the trial court erred in interpreting a provision of the agreed final divorce decree to award Mary one-half of his retirement benefits that accrued during their marriage and including in that award any "variables which have affected the value" of Charles's retirement account since the date of the divorce. We affirm in part and reverse and remand in part.
Background
On July 19, 2016, Charles and Mary signed an Agreed Final Decree of Divorce before a notary public. On July 26, 2019, the trial court signed the parties' agreed final divorce decree. Pertinent to this appeal, the agreed final divorce decree awarded Charles:
Any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds there from and any other rights related to any profit-sharing plan, retirement plan, pension plan, employee stock option plan, employee savings plan, accrued unpaid bonuses or other benefit program existing by reason of [Charles's] past, present, or future employment. Save and except the 50% of [Charles's] Houston Police Officers' Monthly Pension Benefit accumulated from December 19, 1992 that would be payable if [Charles] had retired on July 26, 2016 and $156,236 from the DROP/PROP account.
See Stavinoha v. Stavinoha, 126 S.W.3d 604, 606 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (defining "DROP" as "Deferred Retirement Option Plan" and explaining "[u]nder DROP, [a] member continues working and receiving a salary, and the monthly retirement annuity the member could have received upon retirement is credited to a notional DROP account in the members name"; "[w]hen the member retires-stops the drop program-he or she is entitled to receive the amount accumulated in the DROP account in a lump sum[] and is also entitled to receive payment of the monthly pension benefit").
The decree awarded Mary, among other things,"[fifty percent] of [Charles's] Houston Police Officers' Monthly Pension Benefit which would be payable if [Charles] had retired on July 26, 2016 and $156,236 from the DROP/PROP account."
Following the section of the agreed final divorce decree addressing the division of marital property, Charles and Mary "each acknowledge[d] that before signing [the agreed final divorce decree]," they had read it "fully and completely, . . . had the opportunity to ask any questions regarding the same, and fully underst[oo]d that the contents of [the decree] constitute[d] a full and complete resolution of th[e] case." Charles and Mary also acknowledged that they had "voluntarily affixed their signatures to th[e] [agreed final divorce decree], believing th[e] agreement to be a just and right division of the marital debt and assets, and state[d] that they ha[d] not signed by virtue of any coercion, any duress, or any agreement other than th[at] specifically set forth in th[e] [decree]."
In 2018, Mary filed a motion to clarify the provision of the agreed final divorce decree that awarded her "[fifty percent] of [Charles's] Houston Police Officers' Monthly Pension Benefit which would be payable if [Charles] had retired on July 26, 2016 and $156,236 from the DROP/PROP account." In her amended motion to clarify, Mary asserted that the quoted language from the agreed final divorce decree "may not [have] be[en] specific enough to be enforceable by contempt," and she requested that the trial court to "construe and clarify the terms of" the agreed final divorce decree to specify:
a. the amounts, location, and time of payment of the "Houston Police Officers' Monthly Pension Benefits" by Charles . . .; and
b. the duties or obligations required of . . . Charles . . .; [and] c. language commanding to do or perform the duties or obligations required of Charles . . . . (Emphasis omitted.) In her brief in support of her amended motion to clarify, Mary asserted that the provision awarding her "$156,236 from the DROP/PROP account" was ambiguous because there were two separate accounts-a DROP account and a PROP account-that, according to the pension plan administrator, had to be "listed separately in the [qualified domestic relations order ("QDRO")]." (Internal quotations omitted.) The existence of two accounts, instead of a single "DROP/PROP account," left a question as to whether the $156,236 was awarded from the DROP account, from the PROP account, or from both the DROP and the
PROP accounts. And she acknowledged that the third possible interpretation would make $312,427 the total amount awarded to her.
A QDRO is a species of post-divorce enforcement or clarification order. Gainous v. Gainous, 219 S.W.3d 97, 107 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). It "creates or recognizes the existence of an alternate payee's right or assigns to an alternate payee the right to receive all or a portion of the benefits payable with respect to a member or retiree under a public retirement system, which directs the public retirement system to disburse benefits to the alternate payee . . . ." Tex. Gov't Code Ann. § 804.001(4); see also id. § 804.003(f) (outlining contents required for QDRO).
In his response to Mary's motion to clarify, Charles argued that the trial court "lack[ed] jurisdiction to clarify" the complained-of provision in the agreed final divorce decree "because such clarification would be relitigating the underlying divorce" and "laches, estoppel and waiver all appl[ied]." And Charles asserted that the provision in the agreed final divorce decree about which Mary complained was clear: Mary would only receive "such a benefit 'if' [he had] retired on July 26, 2016," and he had not.
At the hearing on Mary's motion to clarify, Mary testified that she became acquainted with the terms of the agreed final divorce decree when she reviewed it and signed it in the trial court on July 19, 2016. At that time, she understood from Charles's attorney, who had drafted the decree, that she "would receive [fifty] percent of the DROP [account]" and "[fifty] percent of the PROP [account]." During her negotiations with Charles before she signed the agreed final divorce decree, Charles told her that she was supposed to receive fifty percent of the DROP account. She also confirmed with Charles her understanding that she was entitled to fifty percent of Charles's Houston Police Officers' monthly pension benefit that had accrued from the date that they were married until the date that they were divorced.
Mary explained that she sought to clarify the provision in the agreed final divorce decree that awarded her a portion of Charles's pension benefit because when she "went to the [Houston Police Officers'] pension board," she attempted to get a QDRO drawn on Charles's pension benefit but was unsuccessful. The pension system administrator told Mary that she could not initiate the process because she "was not the member" and Charles needed to sign a records release authorization before she could start the process that would allow her to obtain the portion of his pension benefit awarded by the agreed final divorce decree. But Charles refused to sign the authorization and refused to initiate the process himself. And he told Mary that she "would never get" any of his pension benefit.
Mary stated that she was asking the trial court to give her fifty percent of the amount of Charles's monthly pension benefit that had accrued while they were married. To her, the July 26, 2016 date specified in the provision of the agreed final divorce decree, simply meant that "this [wa]s the last day that [she was] entitled to anything from [Charles]," and she acknowledged that she was not entitled to "anything after that date."
Charles testified that "[his] previous attorney" drafted the agreed final divorce decree. He was asked if he had "agree[d] to the terms that are listed" in the decree, and he responded that he had. According to Charles, in his negotiations with Mary before the agreed final divorce decree was signed, they also reached a separate, unwritten agreement "in the presence of [Charles], Mary, and [Charles's previous] attorney." Under that purported unwritten agreement, Mary "was to provide half of the funds that she had depleted from [their joint] savings account, the amount that she had depleted from [their joint] checking account, sell the properties" that Mary and Charles had "bought during the mar[riage]" and replenish "[their children's] college fund" from "which she had withdrawn all the funds." And "once she had provided those funds back, then she would receive [fifty] percent of [Charles's] pension benefit and [Charles] could retire on" July 26, 2016. Charles acknowledged that his purported unwritten agreement with Mary as to those funds and properties was not included in the agreed final divorce decree and the decree provided that it "constitute[d] a full and complete resolution of th[e] case."
Charles further testified that he did not speak directly with Mary after the divorce about Mary's need for his signature and cooperation to gain access to her share of the pension funds from the plan administrator; as to those issues, she had dealt with his previous attorney. Charles understood that the provision in the agreed final divorce decree stating that Mary was entitled to "[fifty] percent of [Charles's] Houston Police Officers' monthly pension benefit which would be payable if [Charles] had retired on July 26[], 2016 and $156,236 from the DROP/PROP account" meant that Mary "would receive that [benefit] once she had completed" the purported unwritten "agreement of providing [Charles] with half of what she had taken during the marital process, [and] during the separation without [Charles's] knowledge" and that "she would receive [fifty] percent of [his] pension benefit if [he] had retired on that particular date." And according to Charles, "if [Mary] had returned half of what she had taken from [their joint] checking account, half of what she had taken from [their joint] savings account, half of what she had taken from the . . . children's college fund, as well as the other three [jointly owned] properties that she had liquidated," he would have had "satisfactory funds" to retire.
As to the "DROP/PROP account," Charles testified that he had both a DROP account and a PROP account at the time the agreed final divorce decree was signed, but later, when he went into "pre-retirement," his DROP account was "convert[ed]" into a PROP account.
Following the hearing, the trial court signed a clarifying order, stating:
IT IS[] . . . ORDERED that [Mary] is awarded 50% of the Houston Police Officer[s'] Monthly Pension Benefit accumulated from December 19, 1992 thru July 26, 2016 and that would be payable as if [Charles] had retired on July 26, 2016. IT IS ORDERED THAT this includes any and all subsequent increases, decreases, interest, [cost-of-living adjustment ("COLA")], and any other variables which have affected the value of the account since July 26, 2016, except for any loans obtained by [Charles]. Thus, IT IS ORDERED that this award of Houston Police Officer[s'] Monthly Pension Benefit includes any and all subsequent increases, decreases, interest, COLA, and any other variables which have affected the value of the account since July 26, 2016, except for any loans obtained by [Charles].
IT IS ORDERED that [Mary] is awarded $156,236 from [Charles's] DROP account with all the gains/losses incurred on that amount since 7/26/2016.
IT IS ORDERED THAT [Mary] is awarded $156,236.00 from the PROP account in [Charles's] name, together with all the gains/losses on that amount since 7/26/2016.
The trial court also ordered that each party was responsible for his or her own attorney's fees.
Standard of Review
We review the trial court's ruling on a post-divorce motion for enforcement or clarification of a divorce decree under an abuse-of-discretion standard. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). A trial court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to any guiding rules or principles, or it erroneously exercises its power by making a choice outside the range of choices permitted by law. Murray v. Murray, 276 S.W.3d 138, 143 (Tex. App.-Fort Worth 2008, pet. dism'd); In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.-Texarkana 2003, pet. denied); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Clarification of Agreed Final Divorce Decree
In his first issue, Charles argues that the trial court erred in interpreting a provision of the agreed final divorce decree to award Mary one-half of his retirement benefits that accrued during their marriage because the decree's provision addressing the division of his pension was not ambiguous and the trial court improperly changed the property division stated in the agreed final divorce decree. In his second issue, Charles argues that the trial court erred in including in its award to Mary "all subsequent increases, decreases, interest, COLA, and any other variables which ha[d] affected the value of" Charles's retirement account since the date of the divorce because, in doing so, the trial court improperly awarded Mary property not awarded in the agreed final divorce decree.
After a divorce decree becomes final, the trial court has continuing jurisdiction to issue orders "to assist in the implementation of or to clarify the prior order." Tex. Fam. Code Ann. § 9.006(a). But the trial court may not "amend, modify, alter, or change the division of property made or approved in the decree of divorce." Id. § 9.007(a); see id. § 9.007(b) (order that "amends, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce" is unenforceable).
An agreed final divorce decree is treated as a contract and is controlled by the rules of construction applicable to ordinary contracts. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986); Howard v. Howard, 490 S.W.3d 179, 184 (Tex. App.- Houston [1st Dist.] 2016, pet. denied). Thus, if a divorce decree when read as a whole is unambiguous as to the community property's disposition, the trial court has no authority to enter an order altering or modifying the original distribution of property and must effectuate the order in light of the literal language used. Shanks v. Treadway, 110 S.W.3d 444, 447, 449 (Tex. 2003). A decree is unambiguous where it can be given a certain or definite legal meaning or interpretation. See Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
On the other hand, if the agreed final divorce decree is ambiguous, an order clarifying the decree may be necessary. Shearn v. Brinton-Shearn, No. 01-17-00222-CV, 2018 WL 6318450, at *6 (Tex. App.-Houston [1st Dist.] Dec. 4, 2018, no pet.) (mem. op.) (citing Tex. Fam. Code Ann. §§ 9.006(a), 9.008). In its order, the trial court may specify more precisely the manner of effecting the property division previously made, as long as the trial court does not substantively change how the property was divided. See Tex. Fam. Code Ann. §§ 9.006(b), 9.007(a); Shearn, 2018 WL 6318450, at *7.
An ambiguity exists when a provision's meaning is uncertain or doubtful or it is reasonably susceptible to more than one meaning. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). The trial court determines whether an ambiguity exists by looking at the writing as a whole in light of the circumstances surrounding its formation. Id. at 394. A writing is not ambiguous simply because the parties disagree about its meaning. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994); see also Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000) (for ambiguity to exist, both interpretations must be reasonable). Whether an agreed final divorce decree is ambiguous is a question of law that we decide de novo. Murray v. Murray, 276 S.W.3d 138, 144-45 (Tex. App.-Fort Worth 2008, pet. dism'd).
At the outset, we note that Charles considers the portion of the provision awarding Mary fifty percent of the pension benefits "that would be payable if [Charles] had retired on July 26, 2016" to be unambiguous-but he understands the portion to have a different meaning than the one given by the trial court in its clarifying order. The trial court did not make explicit whether it considered that portion of the provision to be ambiguous, but in restating that portion in the clarifying order, the trial court added "as," so that the agreed final divorce decree, as clarified, awarded Mary fifty percent of the pension benefits "that would be payable as if [Charles] had retired on July 26, 2016." (Emphasis added.) Charles argues that the trial court erred in interpreting the award because that portion of the provision "clearly and unambiguously refers to one paying out an award only 'if' a condition is met," namely, the condition that he would retire on July 26, 2016, and because he did not, Mary is not entitled to any of those benefits. Charles, though, offers no grammatical or legal authority to support his understanding of that portion of the provision. See Tex. R. App. P. 38.1(i).
We agree that the portion of the provision at issue has only reasonable meaning, but it is not the one advanced by Charles. A common way of expressing a hypothetical situation is through the subjunctive mood, which uses a past-tense verb in a clause beginning with "if" and "would" plus a verb in the main clause. See The Chicago Manual of Style § 5.137 (17th ed. 2017) ("[T]he present subjunctive ordinarily uses a past-tense verb (e.g., were) to connote uncertainty, impossibility, or unreality."). The portion of the provision in the agreed final divorce decree awarding Mary fifty percent of the pension benefits "that would be payable if [Charles] had retired on July 26, 2016" expresses a hypothetical by using the subjunctive mood. The addition of "as" in the clarifying order does not substantively change the hypothetical expressed in the agreed final divorce decree. And because the provision limits the award to the portion of the pension benefits "that would be payable as if [Charles] had retired on July 26, 2016"-the date that the trial court signed the agreed final divorce decree-this reading is also consistent with Texas law, under which the community property portion of a spouse's retirement benefits is limited to that portion of the benefits that was earned or accrued during the marriage. See Berry v. Berry, 647 S.W.2d 945, 946-47 (Tex. 1983); Gainous, 219 S.W.3d at 109; see also Tex. Fam. Code Ann. § 3.002 (defining "community property" as "the property, other than separate property, acquired by either spouse during marriage"). Thus, we hold that the trial court did not err in clarifying the agreed final divorce decree to award Mary "[fifty percent] of the Houston Police Officer[s'] Monthly Pension Benefit accumulated from December 19, 1992 thru July 26, 2016 and that would be payable as if [Charles] had retired on July 26, 2016."
The Chicago Manual of Style offers the following examples, comparing, if "I am threatened, I will quit (indicative)[,] with if I were threatened, I would quit (subjunctive), or if the canary sings, I smile (indicative)[,] with if the canary sang [or should sing, or were to sing], I would smile (subjunctive)." See The Chicago Manual Of Style § 5.137 (17th ed. 2017).
We overrule Charles's first issue.
In his second issue, Charles argues that by including in the portion of his pension benefits awarded to Mary "all subsequent increases, decreases, interest, COLA, and any other variables which have affected the value of" Charles's retirement account since July 26, 2016-the date of the divorce-the trial court improperly awarded Mary property not awarded in the agreed final divorce decree because "[n]owhere within the [agreed final divorce decree] d[id] it state anything about 'any other variables.'"
In Berry, the Texas Supreme Court adopted a general formula for calculating a non-employee spouse's share of an employee spouse's defined-benefit plan so that the share would equal half the amount of the benefit accrued during the marriage that the employee spouse would have received at the divorce date, whether then eligible to retire or not. See 647 S.W.2d at 947; see also Gainous, 219 S.W.3d at 109. Whether the Berry formula applies, though, ultimately depends on the language used in the parties' agreed final divorce decree. For example, in Baxter v. Ruddle, 794 S.W.2d 761 (Tex. 1990), the Texas Supreme Court held that a divorce decree that awarded the non-employee spouse "37-1/2% of [the employee spouse's] gross benefits, if, as and when he received them" and provided that the non-employee spouse "was to receive 37-1/2% of the total benefits that [the employee spouse] received each month" unambiguously provided that the non-employee spouse "was to receive 37-1/2% of the total retirement benefits received by [the employee spouse] each month, including any post-divorce increases." Baxter, 794 S.W.2d at 763; see also Shanks, 110 S.W.3d at 447, 449 (divorce decree that entitled non-employee spouse "to 'pro rata interest' of any and all sums received or paid to [employee spouse] from such pension plan" and defined "pro rata interest" as "[twenty-five percent] of the total sum or sums paid or to be paid to [employee spouse] from such pension or retirement plan" gave non-employee spouse "an interest of all sums received under such plan, not an interest of presently accrued benefits under such plan" and could not "reasonably be construed to award [non-employee spouse] an interest only in the plan benefits that had accrued on the date of divorce"); Gainous, 219 S.W.3d at 190-92 (provision in divorce decree awarding non-employee spouse half "of the Houston Firemen's Relief and Retirement Fund standing in the name of [the employee spouse]" did not "adopt a Berry formula" because it lacked language that would limit award to portion or value of non-employee spouse's award to divorce date, and thus meant that award unambiguously included increases made after divorce date).
Here, consistent with the Berry formula, the agreed final divorce decree expressly limited Mary's award to the pension benefit "that would be payable" on the divorce date. This award gave Mary a contingent right to half the community-owned portion of Charles's pension benefit because Charles had not retired and the benefit had not matured at the time of the divorce. See Stavinoha v. Stavinoha, 126 S.W.3d 604, 616 (Tex. App.-Houston [14th Dist.] 2004, no pet.).
The record does not show how the trial court came to include in its clarifying order the statement that "th[e] award of Houston Police Officer[s'] Monthly Pension Benefit includes "any and all" "increases, decreases, interest," "and any other variables which have affected the value of the account since July 26, 2016, except for any loans obtained by [Charles]." Mary did not request that language in her motion to clarify. And to the extent that the language, "increases . . . and any other variables" affecting the value of the account since the date of divorce, can be read to include funds that Charles may have earned post-divorce by way of raises, promotions, services rendered, or contributions, it improperly expands the share of Charles's pension benefit awarded to Mary in the agreed final divorce decree, because such funds are his separate property. See, e.g., Stavinoha, 126 S.W.3d at 612 (employee spouse's post-divorce contributions from salary to DROP account were his separate property); see also Tex. Gov't Code Ann. § 804.003(g)(7) ("A public retirement system may reject a domestic relations order as a qualified domestic relations order unless the order does not purport to award any future benefit increases that are provided or required by the legislature."). Thus, this statement in the trial court's clarifying order impermissibly alters the division set forth in the agreed final divorce decree. See Tex. Fam. Code Ann. § 9.007(a), (b).
This is not true of increases in pension benefits resulting from COLAs, which are subject to community property division because they are not attributable to raises, promotions, services rendered, or contributions. See Stavinoha, 126 S.W.3d at 612; Burchfield v. Finch, 968 S.W.2d 422, 425 (Tex. App.-Texarkana 1998, pet. denied); Phillips v. Parrish, 814 S.W.2d 501, 504-05 (Tex. App.-Houston [1st Dist.] 1991, writ denied).
For this reason, we hold that the trial court erred in ordering that the award of a portion of Charles's Houston Police Officers' Monthly Pension Benefit to Mary included "any and all" "increases, decreases, interest," "and any other variables which ha[d] affected the value of the account since July 26, 2016." On remand, the trial court should revise its order to: (1) eliminate the catchall language awarding "any and all" "increases, decreases, interest," "and any other variables"; (2) identify, as it has done with COLA, any other specific items affecting the value of the pension benefit that are community property and thus subject to the division set forth in the agreed final divorce decree; and (3) limit the award accordingly.
We sustain Charles's second issue.
Both parties ask this Court to award appellate attorney's fees but neither asked the trial court to award them contingent appellate attorney's fees, so nothing is presented for review. See Tex. R. App. P. 33.1(a). We also note that Mary did not bring a cross-appeal challenging the trial court's ruling on appellate attorney's fees issue, and Charles did not raise an issue in his brief as to appellate attorney's fees for our review. See Tex. R. App. P. 25.1(c), 38.1(f); see also Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (concluding failing to raise issue on appeal waives error).
Conclusion
We reverse the portion of the trial court's clarifying order, italicized below, that ordered that Mary's "50% of the Houston Police Officer[s'] Monthly Pension Benefit accumulated from December 19, 1992 thru July 26, 2016 and that would be payable as if Charles . . . had retired on July 26, 2016," "include[d] any and all" "increases, decreases, interest," "and any other variables which have affected the value of the account since July 26, 2016." (Emphasis added.) We affirm the remaining portions of the trial court's clarifying order. We remand the case to the trial court for further proceedings consistent with this opinion.